May 09, 2011
It has been claimed and it is also my understanding that human rights protect important aspects of a human life. The views on what are the important aspects may vary. The drafters of the Universal Declaration of Human Rights put in their views; inspired by the rights in the Declaration, the European Convention was composed, and States made an agreement that those are the aspects that should be protected by legally binding human rights. And finally, the Court does its job to interpret the rights and thus we find spheres in each right that are protected by the respective right. These spheres are often determined as rights within the existing broader rights of the Convention. Does the Court think about the general importance of the spheres in human life when developing the scope of rights? To my mind, it could be at least stronger on applying the importance criterion. Let’s take a look at a recent case decided by the Court – Golemanova v. Bulgaria.
The case concerns a refusal by the Bulgarian courts to allow the applicant to change her official forename to the name she normally uses. According to her, since childhood she has been known exclusively by the name Maya, both within and outside her family, even though her officially registered forename is Donka. Relying on Article 8 Ms Golemanova complained that the refusal of the Bulgarian courts to allow her to officially change her forename to the name she normally used breached her right to respect for her private and family life.
I propose a two step importance analysis here. The first step would be to determine whether the sphere is important enough in human life to be considered as a part of human rights. The second step would be to determine whether the actual situation in the accepted sphere is severe enough to be examined by this particular international Court, or in other words – the applicant has suffered a significant disadvantage. As one can see, this is where the new admissibility criterion comes in.
In the Golemanova judgment the Court began by confirming that changing of person’s name fell within the sphere of private and family life (see paragraph 37). I do not know whether the Court thinks about the importance of a new sphere before proclaiming it part of a certain Article. If only a link with the notions in an Article is needed to proclaim something part of the Article, then almost everything is human rights. For example, by applying formal logics almost everything a human does is part of his private life, or anything others do to a human being can be seen as an interference with one’s autonomy. In this first step of the importance analysis the Court, after finding the link between the life situation and the notions included and protected by the Convention, should think whether the (potential) life situations arising in this sphere are important enough for a human life and consequently need to be protected by human rights.
The second step in the importance analysis is the application of the new admissibility criterion. Taking into account the caseload of the Court, the Court should be concerned with human rights cases where the disadvantage suffered has been truly significant. The rest should be left to the national courts. I would like to point out that there are security clauses accompanying the new criterion, so the applicants are not left completely in the hands of their governments in those cases. If we return to the Golemanova case, I would say, that there the disadvantage suffered was not significant enough. I am ready to accept that there might be very complicated situations (even though it is hard for me to imagine that situation at the moment. Probably I would not accept the changing of forenames as important enough in the first step of the importance analysis). When deciding on admissibility, I would ask the applicant to describe what misunderstandings, problems, complications in professional or private life or other spheres she has experienced because of the difference of her name in papers and how people address her, and/or how she experiences (or has experienced; now the applicant is 52 years old) the difference in her personality, identity. For now I cannot see the disadvantage suffered as significant enough.
I would like to conclude by saying that in this particular case I would decide to examine the case on the merits after applying the security clauses of the new criterion. It seems that the national courts have not examined the case properly (see the dissenting opinion attached to the judgment).
 Nickel, James, “Human Rights”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/entries/rights-human/